Case Summaries – Page 115 – Electronic Discovery Law

S.E.C. v. Bonan Huang, No. 15-269, 2015 WL 5611644 (E.D. Pa. Sept. 23, 2015)

Dec 01 2015

Key Insight: Court denied ?Plaintiffs? motion to compel Defendant s to disclose their secret personal passcodes for smartphones owned by their former employer who, as a matter of policy, required their employees to keep their personal passcodes secret from everyone? upon concluding that ?[s]ince the passcodes to Defendants? work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege? and that the ?foregone conclusion doctrine? did not apply ?as the SEC Cannot show with ?reasonable particularity? the existence or location of the documents it seeks?

Electronic Data Involved: Passcodes or passwords to smartphones

Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-740-Orl-41TBS, 2015 WL 1470971 (M.D. Fla. Mar. 31, 2015)

Dec 01 2015

Key Insight: Where Plaintiff produced documents ?en masse? without any indication of what was produced or what request the documents were responsive to and claimed that they were produced as kept in the usual course of business and thus in compliance with Rule 34, the court reasoned that a party who produces documents as kept in the usual course has the burden of proving they were in fact produced in that manner and that a party may not wait until a motion to compel is filed to provide that information and concluded that Plaintiff had not complied with the requirements of Rule 34(b)(2)(E)(i) and ordered that Plaintiff must identify by Bates number which documents were responsive to each request

Electronic Data Involved: ESI

Superior Performers Inc. v. Meaike, No. 1:13CV1149, 2015 WL 471429 (M.D.N.C. Feb. 4, 2015)

Dec 01 2015

Key Insight: Where Plaintiff?s agent deleted an original voicemail from his phone by way of a factory reset but had produced a copy and also claimed to have transferred the voicemail to his new phone and where Defendants sought sanctions and argued that the deletion would prevent them from showing the voicemail was fabricated, as they suspected, the court declined to impose sanctions for the alleged fabrication, despite evidence the presentation of evidence that could lead to that conclusion, but did order that Plaintiff be prevented from using the voicemail at trial as a sanction for spoliation, reasoning that although the voicemail was not on one of Plaintiff?s phones (but rather on its agent?s), it ?likely? had a duty to preserve the evidence and that Plaintiff did not attempt to provide access to the phone or provide notice of the voicemail?s possible destruction

Nature of Case: Enforcement of Restrictive Covenants

Electronic Data Involved: Voicemail

Giuliani v. Springfield Township, No. 10-7518 (E.D. Pa. June 9, 2015)

Dec 01 2015

Key Insight: Court declined to impose spoliation sanctions for Township?s alleged failure to preserve relevant evidence where the Township believed that all disputes with Plaintiffs had been resolved, and thus had no anticipation of litigation or duty to preserve prior to the filing of the complaint, where there was no evidence that the at-issue evidence was destroyed after litigation had commenced, and where Plaintiffs failed to establish that defendant had acted with any ill motive or bad intent (bad faith) in failing to retain the documents plaintiff sought

Nature of Case: Constitutional claims related to land use

Electronic Data Involved: Emails, ESI

US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)

Dec 01 2015

Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice

Nature of Case: False Claims Act

Electronic Data Involved: ESI records from nationwide locations

Boyd v. Mississippi, No. 2014?KA?00404?SCT, 2015 WL 1955570 (Miss. Apr. 30, 2015)

Dec 01 2015

Key Insight: Court said that it was clear that the defendant?s name on a Facebook profile did not suffice to show that he authored the Facebook messages, but what did authenticate them were the ?peculiar circumstances? of the case, including a Facebook message that contained the same three digits of a phone number that was used to text victim and arrange a meeting at which the defendant was arrested. Court also found that the fact that the defendant went alone to an agreed location twice after the sender of text messages agreed to do so, with a phone in his possession that had the same number as had been used to communicate with the victim, was sufficient to authenticate that the defendant was the author of the text messages.

Nature of Case: Criminal

Electronic Data Involved: Social media (Facebook), Text Messages

State v. Gibson, Nos. L?13?1223, L?13?1222, WL 1962850 (Ohio Ct. App. May 01, 2015)

Dec 01 2015

Key Insight: Court of Appeals said that a combination of both personal knowledge of the appearance and substance of public Facebook profile pages, taken in conjunction with direct and circumstantial evidence was sufficient to meet threshold admissibility requirements such that a reasonable juror could conclude that the various Facebook profile pages were attributable to appellant; therefore, the trial court did not abuse its discretion in admitting printed pages of images from the public portions of Facebook profiles.

Nature of Case: Criminal

Electronic Data Involved: Facebook (social media/social network)

Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7158212 (W.D. Wash. Nov. 13, 2015)

Dec 01 2015

Key Insight: Court denied motion to compel Defendant to search for documents from non-U.S. points of sale where the court found such documents would be of ?marginal relevance at best? and that the burden and expense of production outweighed the benefit, noting that such production would ?vastly expand? an already voluminous production, would entail additional translation costs, and would ?potentially require the involvement of additional entities or foreign law??; court also declined to compel Defendant to conduct searches of Account Representatives for 170 different airlines where Plaintiff failed to establish that the expanded search would reveal additional relevant information and noting that the productions of third party air carriers had not revealed any ?glaring deficiencies? in Defendant?s production

Nature of Case: Class action

Electronic Data Involved: ESI

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Dec 01 2015

Key Insight: Plaintiffs brought a ?Motion to Review Clerk?s Taxing of Costs Under F.R.C.P. 54(D)(1).? Specifically, Plaintiffs sought review of the clerk?s determination ?concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.? The court held that ?[b]ecause Defendants? costs related to the electronically stored information (?ESI?) are expenses enumerated in 28 U.S.C. ? 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs? Motion is denied.?

Electronic Data Involved: ESI

Hanwha Azdel Inc. v. C & D Zodiac, Inc., No. 6:12-CV-00023, 2015 WL 1417058 (Mar. 27, 2015)

Dec 01 2015

Key Insight: District Judge adopted in toto recommendations of the Magistrate Judge, including approval of costs related to converting ESI into a reasonable format, where the conversion was requested by an opposing party and ultimately ordered by the court

Electronic Data Involved: ESI

Catagory:Case Summaries